Speaking extra-judicially

On the benefits of foreign law and the dangers of expert evidence

As a green young pupil at chambers tea, it was impressed upon me (and I have often heard it repeated since) that

English law is law

Foreign law is fact

Expert evidence is merely opinion.

Well, that may not be the whole story, but it seems quite a useful starting point to discuss two speeches among the clutch given recently by members of the UK Supreme Court. The first was by Lord Toulson, speaking to the London Common Law and Commercial Bar Association on 11 November, discussing the International Influence on the Common Law. The second was Lord Neuberger’s, at the annual Bond Solon Expert Witness Conference on 7 November, on the subject of Expert Witnesses.

Lord Toulson began with anecdotes about St Augustine and some talking fish (they were separate anecdotes, in case you were wondering) but they make more sense if you read the whole speech, which I recommend. His point was that while we pride ourselves on our home-grown common law, we should value and appreciate the influences upon it of foreign jurisprudence, and not be afraid of importing foreign legal ideas if and when they might be better than our own.

He quoted Lord Goff of Chieveley who, in a lecture in 1986, had said “a greater readiness to learn from the legal systems of other countries”, including civil law countries, would help the common law to “embark upon the most fruitful period of development in its long, eventful history”. Sitting judicially in the House of Lords, Lord Goff had put this into practice in cases such as White v Jones [1995] 2 AC 207, where he had considered the law of New Zealand, Australia, Canada, the USA, Germany, France and the Netherlands; in Henderson v Merrett Syndicates Ltd [1995] 2 AC 145; and in Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349.

Lord Toulson then spoke about three examples of features of the common law which had been derived from other jurisdictions, namely the doctrine of frustration, the Mareva (freezing) injunction, and the concept of proportionality. In short, there was a “rich history of the common law borrowing ideas, answers and concepts from abroad”.

European influence

He then moved onto the more controversial (perhaps) subject of the influence on the common law of the European Convention on Human Rights and its incorporation into domestic law by the Human Rights Act 1998, section 2 of which imposes a statutory duty on the courts to “take into account” any decisions of the European Court of Human Rights at Strasbourg.

He began with a warning:

Experience has taught us that an automatic reliance on Strasbourg case law can tend to deflect us from an insightful and penetrating analysis of the common law that may be found in or derived from the tomes of English and foreign law reports and the writing of scholars.

By way of example of the latter (presumably better) approach, Lord Toulson cited R (Guardian News & Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420; [2013] QB 618, in which the Court of Appeal, faced with inconclusive Strasbourg authorities, found a survey of the case law from Canada, New Zealand, South Africa and the USA, and “a particularly valuable report of the New Zealand Law Commission” more helpful. In his judgment, he had said:

The development of the common law did not come to an end on the passing of the Human Rights Act. It is in vigorous health and flourishing in many parts of the world which share a common legal tradition.

As in a later case, Kennedy v Information Commissioner [2014] UKSC 20; [2014] 2 WLR 808, which Lord Toulson also discussed, the court reached its decision on the common law principles of open justice, and not on article 10 of the Human Rights Convention, in order to permit disclosure of documents to the media. However,

I am certainly not advocating that the European Convention should be ignored in the development of the common law. The expansion of the action for breach of confidentiality to include a partial law of privacy is a striking example of the Convention leading to a change in the common law which had been widely regarded as defective.

The Act only required the courts to “have regard” to Strasbourg decisions, not to “adhere slavishly to every Stasbourg decision even if after careful consideration they believe it to be wrong.” And here’s the crux of the matter, in para 37 of Lord Toulson’s speech, worth quoting in full:

It is also important to remember the way the Strasbourg court operates. It will seldom directly contradict one of its earlier decisions but it does not have the same doctrine of precedent as in the common law. So it is not unusual to find a cluster of decisions, sometimes by different chambers, which employ the same phrases but which differ in outcome without the kind of analysis to which we are accustomed when reading judgments, particularly appellate judgments, in this country and other common law jurisdictions. When looking at Strasbourg decisions it is therefore an error to regard every decision as containing a binding ratio decidendi. One may look for that in vain. What must be examined is whether there is to be found in the Strasbourg case law an established jurisprudence on the relevant topic and what precisely it is. In this regard Grand Chamber decisions are likely to carry greater weight than decisions of individual chambers. If after careful consideration the UK court is unable to agree with some aspect of the Strasbourg jurisprudence, it is its duty to say so and explain its reasoning. This is part of the ebb and flow of ideas between our courts and Strasbourg, in the hope that, as Benjamin Cardozo put it, in the ebb and flow of the tide “the sands of error crumble”.

If I may interrupt, I think a point worth stressing here is that if the courts themselves don’t get this, it is hardly surprising that parliamentarians and the press don’t get it either.

Lord Toulson concluded with some consideration of the question when it would be appropriate to take into account non-European foreign law. The starting point was to see how far domestic law had gone wrong, and then to see whether the right path could be found in foreign law, including any relevant publications of foreign law commissions (often overlooked).

Just as Lord Toulson urged us to consider domestic common law in the broader context of the common law of other jurisdictions and even civil law jurisprudence, so Lord Neuberger in his address urged his audience to see the functions of the expert witness in the context of “broader features of human experience and nature, of science and technology and, more particularly, of litigation and the judicial process”.

First, a definition:

“An expert witness is a witness who gives opinion evidence to the court on technical, scientific or other specialist issues, which the court considers appropriate for expert evidence, and any such evidence should represent the expert’s honest independent opinion based on his knowledge and experience.”

However, scientific experts and their views were “very much creatures of their own time”. So an expert who denied the medical value of bleeding in the 18th century would have found his evidence rejected against the orthodoxy of the time.

Or take a fundamental and apparently wholly objective and binary issue: did light consist of waves or particles? Different views had held sway at different times, but from about 1930 it had been considered to consist of both – so-called wave-particle duality – or possibly neither. (Although Lord Neuberger does not mention this in his speech, I would like to interject the humorous or perhaps satirical view of de Selby, a character appearing in the footnotes of a novel (The Third Policeman) by Flann O’Brien, which I have just wasted the best part of an afternoon rereading, that it is actually darkness which consists of particles, these accumulating towards nightfall to produce the sensation of an absence of light, an accretion of “black air” smuts, the gathering density of which obscures what light there is, and whose highly combustible nature causes them instantly to disperse on the lighting of a match or lamp. There is probably no time in the history of mankind when such a view would not have been challenged, robustly I dare say, in a court of law. But there we go. It is no more ludicrous than the bleeding of the infirm, or other examples of scientific misapprehension cited by Lord Neuberger, back to whose speech we should now hasten.)

One of the problems of the modern age, which feeds into expert evidence, is the unsatisfactory way in which figures are used and understood by the great majority of people. Most people, for instance, do not understand the enormous importance of statistical evidence, and, if it is available, they do not understand how to test its reliability, or even what it really means.

As an example of how figures could be misleading, he mentioned something which the very same week took on a political significance. He said:

“what are in fact the best hospitals for a certain procedure may have a worse mortality rate than the less good hospitals, because GPs and indeed the less good hospitals refer the most difficult patients to the best hospitals leaving the less good hospitals with the more routine cases.”

Some days after Lord Neuberger said these words, Sir Bruce Keogh, Medical Director of the National Health Service, declared in an interview that surgeons had a moral duty to publish their “death rates” in an effort to promote transparency. The problem with this, as with all league tables, is that (a) it can be misleading to the public, who don’t understand, and to the press and politicians who may choose not to, in order to improve the story they wish to promote; and (b) such league tables can be “gamed” and manipulated, as has been evident, for example, with school exam league tables and, more harmfully, hospital waiting lists.

As Lord Neuberger went on to say, “the general public understanding of statistical evidence is pretty woeful.” He cites some examples, including the sad case of Professor Meadow, the expert witness whose testimony proved so disastrous in the case of Sally Clark (a case referred to also by the fictitious judge in Ian McEwan’s recent novel, The Children Act, reviewed here).

The problem with Dr Meadow’s evidence was not just the misleading use of numeric probability, but also the fallibility inherent in his emotional commitment to his own theories.

Another problem with figures was that they gave a respectability to evidence even when they were wholly subjective. Lord Neuberger cited the use of comparables, with adjustment by various factors, in property valuation cases, of which he had experience when in practice. In most cases the figures were based on wholly subjective, if commonsense, views of surveyors. Putting a figure on something, like a client’s chance of winning, may give the subjective view a wholly specious respectability. The fact that no one had challenged, or been equipped to challenge, Dr Meadows’ evidence was worrying.

In these circumstances, his Lordship was nervous about the idea of using single joint experts. It was a course that could and should be adopted if it was proportionate, bearing in mind the sums involved. The fact that Jones v Kaney [2011] UKSC 13; [2011] 2 AC 398 had removed the expert witness’s immunity from suit when giving evidence would help to ensure that they did their homework before giving their evidence. A less adversarial approach to expert evidence might also be beneficial. One possibility was what was known as “hot tubbing”, or concurrent evidence, where under the chairmanship of the judge, the lawyers and experts got round a table and discussed the evidence and their views.

Finally, it should be recognised that

“we cannot eradicate the vagaries and imperfections of the human condition or the nature of the trial process, but that does not exonerate us from ensuring that we do as good a job as possible in discouraging or neutralising these vagaries and imperfections.”